WisBar News: Federal Law Does Not Preempt Right-to-Cure Provision in Housing Lease:

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  • Federal Law Does Not Preempt Right-to-Cure Provision in Housing Lease

    Joe Forward

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    May 29, 2014 – The Milwaukee City Housing Authority caused Felton Cobb to be evicted from his residence, claiming the 62-year old breached his one-year lease by smoking marijuana inside the premises. Recently, a state appeals court said the eviction must be vacated.

    Cobb said he wasn’t smoking pot, but a Housing Authority security officer testified that he smelled marijuana emanating from Cobb’s apartment when doing his security patrol. The patrolmen did not enter Cobb’s apartment; it was Cobb’s word against his.

    The circuit court said the Housing Authority met its burden to prove the presence of drug activity, and the lease allowed the Housing Authority to evict Felton for drug use. On appeal, a three-judge panel for the District I Appeals Court sided with Cobb.

    In Milwaukee City Housing Authority v. Cobb, 2013AP2207 (May 28, 2014) the panel ruled that the Housing Authority did not meet requirements to evict, and federal law does not preempt the Housing Authorities duty to meet comply with such requirements.

    Wis. Stat. section 704.17(2)(b) allows landlords to terminate tenancies upon lease breaches if the landlord gives the tenant notice allowing the tenant to remedy the default or vacate the premises within five days after receiving the notice to cure or vacate.

    The Milwaukee Housing Authority did not provide this notice to Cobb. Failure to issue notice deprived the circuit court of competency to enter an eviction judgment, the appeals court noted, and federal law does not preempt the right-to-cure provision.

    Federal law preempts state law only if Congress determines the area is one that should be regulated by the federal government, or if the state law conflicts with federal law.

    The Housing Authority argued that federal law preempts state law on issues involving public housing authorities that receive federal assistance; the provision was preempted.

    Specifically, the housing authority pointed to a federal statute that says public housing agencies should use leases that allow for lease termination for drug-related activity, in addition to other criminal activity that threatens the health and safety of other tenants.

    However, the appeals court noted that the lease provision requiring a five-day notice to cure or vacate under section 704.12(2)(b) is not inconsistent with this federal law.

    “Additionally … the federal law does not supplant the field; it fully recognizes that public housing is a shared federal-state endeavor,” wrote Judge Ralph Adam Fine.

    The court of appeals panel refused to follow out-of-state decisions upholding federal preemption arguments in cases involving evictions from public housing units.

    Instead, the panel noted that the Housing Authority “bound itself to the lease that it drafted” by including the right-to-cure notice provision, which was not preempted.

    Without the notice, the circuit court could not enter an eviction judgment, regardless of whether Cobb could “cure” the past action of alleged pot smoking, the panel noted.